Civil Law, Common Law Distinctions and How That Affects Attorneys Transitioning Internationally
In addition to the procedural requirements attorneys must comply with in order to become licensed in different countries and jurisdictions, attorneys interested in making this transition must also become familiar with the new country's legal system.
November 19, 2019 at 10:12 AM
5 minute read
As the world becomes increasingly connected, many attorneys chose to leave their home countries to become licensed attorneys and practice law in other jurisdictions. In addition to the procedural requirements attorneys must comply with in order to become licensed in different countries and jurisdictions, attorneys interested in making this transition must also become familiar with the new country's legal system. Firstly, it is essential for attorneys to understand the difference between the two dominant systems of the law, civil and common law, as these systems represent different ways of achieving justice. Additionally, to understand the distinctions between both systems and its implications is imperative not only to attorneys who intend to practice law across borders, but also to law firms seeking to operate and represent clients internationally.
Importantly, civil law and common law are the two main legal systems around the world. Currently, about 150 countries, and the Province of Quebec, Canada, adopt the civil law system, including China, Brazil, Germany, and France, whereas about 80 countries chose the common law, including the United States, England and Canada—excluding Quebec. The most notorious difference between the two systems is that common law is primarily based on judicial precedents, where prior judicial decisions hold primary importance, while in civil law, codified statutes prevail. In practice, however, many countries adopt a mixture of the features from both systems.
Moreover, there are also differences between the responsibilities of lawyers and judges in each system. More specifically, in civil law, judges are much more active in conducting cases, as they serve as investigators, taking the lead in legal proceedings, while lawyers represent the interests of their clients, but are more focused in rendering legal advice, and drafting legal pleadings. In common law, however, lawyers have more control of their cases, as they examine witnesses themselves. Consequentially, in both systems, attorneys and judges present indispensable roles, but they involve different responsibilities.
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